Judicial Review of Water Appropriation Permit Decisions Fall Within MAPA, Appellate Court Determines

Originally published in the December 2024 issue of Bench & Bar of Minnesota Environmental Law Update, Minnesota State Bar Association.

A Minnesota Court of Appeals was recently tasked with deciding which statute provides for review of an amendment to a water appropriation permit. See In the Matter of the Application for Water Appropriation Permit No. 1984-6141, 2024 WL 4182595 (Minn. Ct. App. Sept. 10, 2024). In a question involving statutory interpretation and analysis of legislative intent, the court held that the Minnesota Administrative Procedures Act (MAPA) and its 30-day timeline controls judicial review of decisions related to a water appropriation permit.

Pursuant to Minn. Stat. § 103G.301 et seq., a city may not appropriate State waters without a permit from the commissioner of the Department of Natural Resources. Once a permit is issued, a city must obtain permission for any modifications of that permit, including increasing its authorized appropriation limit, as was the case here.

In November 2022, the City of Elko New Market (City) applied to amend its water appropriation permit to increase its maximum authorized annual water appropriation by 230 million gallons per year due to the City’s growth and an associated water bottling project. The request was granted on June 12, 2024. On July 12, 2024, a group of relators filed a petition for certiorari, asking the court to review the commissioner’s approval. Relators cited Minn. Stats. §§ 14.63 and 14.64 of MAPA as the jurisdictional basis for the appeal. The petition was served on July 15, 2024. On July 30, 2024, relators filed a motion to amend their petition to include Minn. Stat. Ch. 606 as an additional basis for review. The City then moved to dismiss the appeal, claiming that relators failed to timely serve the certiorari petition.

The basis for dismissal was due to relators’ untimely service of the certiorari petition on the City within the 30-day timeframe following the commissioner’s decision, as required by Minn. Stat. § 14.63 and MAPA. MAPA provides that a person aggrieved by a final decision in a contested case may seek judicial review by petitioning for a writ of certiorari. Relators contended that the petition was served timely pursuant to Minn. Stat. § 606.01, which sets a 60-day post-decision timeline. Minn. Stat. § 606.01 provides for review of a quasi-judicial decision by an agency with state jurisdiction if (1) contested case proceedings have not been conducted; and (2) an applicable statute does not otherwise provide for judicial review.

The court determined that the “repeated references to chapter 14 [in Minn. Stat. § 103G.31] indicate that the legislature intended that the application process for water-appropriation permits be governed by MAPA.” Any appeal arising from a decision under Minn. Stat. § 103G.311, therefore, is governed by MAPA and gave relators a 30-day window to file and serve a petition for certiorari. Because relators did not serve the petition on the City until July 15, 2024, the petition was untimely and dismissal was required.